Ramashraya Yadav v. State Of Uttar Pradesh

K.C Agarwal, J.:— Writ Petition No. 10090 of 1981 under Article 226 of the Constitution has been filed by Ramashraya Yadav, who was employed as a Lekhpal in Circle No. 134 in Tehsil Sadar, District Deoria. It challenges termination of his service by means of an order dated 24th July, 1981, contained in Annexure ‘2’ to the writ petition. The petitioner has sought a writ of Certiorari for quashing of the aforesaid order and for Mandamus commanding the respondents not to interfere in his service.

2. The petitioner's allegations were that he was a trained Lekhpal having obtained training at Sheogarh Training Centre, Rai Bareli. He passed the Lekhpal Examination in the year 1969 and obtained a certificate in lieu thereof. He was employed in the Consolidation Department initially. According to him after he had worked for several years in the Consolidation Department, he was absorbed on the post of regular Lekhpal in the Revenue Department on Probation and after completing the probationary period, he was confirmed and became permanent. Relying upon Section 23 of the Land Revenue Act, the petitioner claimed that he was a State Government employee and was governed by the U.P Civil Services Rules. He asserted that while he was working in Deoria, a letter was issued by the Commissioner, Gorakhpur, Region, Gorakhpur, calling upon all the District Magistrates of Gorakhpur Region, to dismiss the Lekhpal working in that region. In pursuance of the said letter of the Commissioner, the Services of the petitioner and several others were terminated on 13th July, 1981. According to the petitioner, the termination of his service by the said letter on the ground that since he was an untrained Lekhpal therefore, he was liable to be terminated, was illegal. The petitioner claimed, as already stated above, that he was appointed initially in Consolidation Department and was then absorbed as regular Lekhpal on June 2, 1979. After the absorption in the Revenue Department, the petitioner had become permanent and could not be consider as untrained Lekhpal. For the purpose of proving that he was a trained Lekhpal, the petitioner referred to a letter dated 18th April, 1977 which was a circular issued by the Board of Revenue, that those Lekhpals who were trained in Consolidation Department and appointed on regular posts of Lekhpals would be considered as trained by them required for permanent absorption. On these facts, the petitioner alleged that the termination of his services treating him to be a temporary Lekhpal was illegal. The petitioner also claimed that the policy, in pursuance of which his services had been terminated, contravened Articles 14 and 16 of the Constitution.

3. In the counter-affidavit filed on behalf of the respondents, the allegation that the petitioner was a trained Lekhpal has been denied. The allegations made were that the petitioner was not trained Lekhpal for appointment as regular permanent Lekhpal in the Revenue Department. The fact that the petitioner had obtained training at Chakbandi Lekhpal Training Centre at Sheograh, was admitted, but it has been alleged that this training is not recognized for appointment as a regular Lekhpal in accordance with the Government Order dated 8th May, 1980. The respondents have claimed that the petitioner was temporarily employed in pursuance of the Government Order dated 29th August, 1977. He was not absorbed and not was made permanent as he did not possess the requisite qualifications, as kid down in paragraph 6(1) of the Lekhpals Service Rules, 1958. The service of Lekhpal of Revenue Department was alleged to be different from that of Lekhpal of Consolidation Department. Refuting the interpretation made by the petitioner to the Board of Revenue's order dated 8th May, 1980 the respondents have alleged that the policy laid down in the said letter is to appoint trained Lekhpals in place of untrained Lekhpals, hence the petitioner had wrongly claimed that his services had been regularised in pursuance of the said order of the Board. According to the respondents, the petitioner was a temporary employee and his services were terminated under the provisions of U.P Temporary Government Servants Termination Rules, 1975 as he was not qualified.

4. In the rejoinder affidavit, the petitioner has reiterated the facts stated by him in the writ petition.

5. At the time of hearing of the writ petition a preliminary objection was raised to the maintainability of the writ petition, on the ground that since the petitioner had an alternative remedy of challenging the termination of his employment by preferring a claim before the Tribunal appointment under the U.P Public Services (Tribunals) Act, 1976 (hereinafter referred to as the Tribunal Act), the petitioner was not entitled to get any relief from this Court.

6. We have heard counsels for the parties in this writ petition on this preliminary point as well as in other writ petitions which were listed for hearing along with this petition. In our opinion, the preliminary objection raised on behalf of the respondents is well founded and the writ petition is liable to be dismissed without going into the merits of the respective contentions raised by the counsel for the parties in support of their claim. It is true and it has been emphasised repeatedly that availability of alternative remedy is not a bar to the maintainability of a writ petition. The alternative legal remedy does not affect the High Court's jurisdiction as such. It is only a factor, however, to be taken into consideration. The rule availing the alternative remedy before invoking jurisdiction under Article 226 of the Constitution was characterised as “a rule of policy, Convenience and discretion, rather than a rule of law”. See State of U.P v. Mohammad Noor . A.I.R 1958 S.C 86., and Babu Ram v. Zila Parishad . A.I.R 1969 S.C 556..

7. It is true that Article 226 of the Constitution is not hedged in by any limitations and its language permits a High Court to investigate questions of fact also. But, the rules of practice evolved, by which the High Court has imposed certain restraints on its own powers, is that High Court would not normally interfere and investigate a question of fact, and another is that it would not interfere when an alternative remedy is available. See Rameshwar v. Sales Tax Officer . 1966 A.L.J 898..

8. Counsel for the petitioner, however, emphasised that where, as here, the points raised in support of the writ petition is about the order of termination being manifestly erroneous, this Court should not refuse to interfere on the basis of alternative remedy. In that connection, counsel also submitted that alternative remedy is not a bar to the entertainment of a writ petition under Article 226 of the Constitution, if—

(i) there was a complete lack of jurisdiction in the authority to take action impugned, or.

(ii) where the order prejudicial to the petitioner has been passed in violation of the principles of natural justice, or

(iii) where the order is in contravention of the provisions of the Constitution.

9. Apart from the three exceptions, which have been stated above, it is undeniable that this Court has discretion to entertain a writ petition when it finds that the exigency of the case requires to do so. It is not possible to lay down any broad lines of the general principles on which the Court can act. In each case, facts will have to be examined and found out whether the interest of justice requires interference in that case. No inflexible rule can be laid down in that regard. (See A.B Venkateswaran, Collector of Customs Bombay v. R.S Wadhwani . A.I.R 1961 S.C 1506..

10. In the present case, after hearing counsel for the parties, we are of the opinion that interest of justice would be subserved better by not interfering in the writ petition and asking the petitioner to invoke or avail the alternative remedy. We are satisfied that the petitioner can have an adequate or suitable relief by preferring his claim before the Tribunal appointed under Tribunal Act.

11. At this place, we may, briefly, analyse the relevant provisions of the Tribunal Act. This Act passed to provide for the constitution of Tribunals to adjudicate disputes in respect of matters relating to employment of all public servants of the State. The relevant portion of the Statement of Object and Reasons given is extracted below:

“The number of cases in the Courts pertaining to the employment metters of the government servants was constantly on the increase. This, besides increasing the work-load in the Court also delayed considerably the disposal of such cases. Such litigation also involved money and time of the Government Servants. In these circumstances, it was decided to establish Public Service Tribunals to deal with cases pertaining to employment matters of Government servants”.

12. A review of the various provisions of the Act would indicate that a Tribunal consists of two persons, one of whom is a Judicial Member and the other an Administrative Member. A person is appointed to hold office as a Judicial Member who is, or has been qualified to be a Judge of the High Court, Similarly, an Administrative Member shall be a person who holds or has held the post of, or any post equivalent to. Commissioner of a Division. It would thus be seen that it is manned by highly qualified persons. The power conferred by Section 5 of the Tribunal Act is very wide. It is not bound by the procedure laid down by the Code of Civil Procedure or the rules of evidence contained in the Evidence Act. The Tribunal is entitled to admit in evidence, in lies of any original, document, a copy thereof attested by a gazetted officer. It can decide cases on the basis of evidence on affidavits and need not take oral evidence. It has wide power of summoning the original documents from the Government. It is entitled to give any relief which may be warranted on the facts of a case before it. The Tribunal's order is final and is not capable of being challenged by means of a suit or appeal.

13. After considering these provisions, we find that the remedy before the Tribunal is expeditious. A Tribunal is not hedged in by technicalities and can do justice by getting the original records from the Government. Its judgment is final. In these circumstances, we are of opinion that, in the present case, the alternative remedy of invoking the Tribunal Act by preferring a claim by the petitioner is a ground on which the writ petition can be rejected.

14. Before us disputes of fact have also arisen with regard to certain matters, the details of which need not be mentioned. Suffice it to say only one thing, whether the appointment of the petitioner was temporary or permanent. For deciding this question itself, evidence would be required to be adduced which can more appropriately be done by preferring a claim before the Tribunal. The Tribunal will have a right to take evidence and also ask the Government to produce the relevant papers. Without looking into the entire records. It is not possible to decide the writ petition in favour of the petitioner. To us, it appears that it is in the own interest of the petitioner that he is asked to go to the Tribunal. We are not satisfied that the present was either a case of breach of the principles of natural justice or that of a mistake apparent on the face of the record. If the petitioner was a temporary Government Servant, and if any other terminating his services had been passed without attaching any stigma, it would not be considered an order by way of punishment. That being so, the petitioner's argument that he was entitled to an opportunity of hearing being given to him would fall to the ground.

15. The petitioner's learned counsel pointed out three factors in opposition to the preliminary argument. One of them was that the Tribunal since has no power to grant an ad interim order during the pendency of the case before it, the remedy before the Tribunal could not be held to be adequate. A remedy could be considered to be adequate only when the Tribunal or Court is empowered to grant a stay order. We are not in agreement with the petitioner's learned counsel. It is true that by U.P Act I of 1977, the power to grant stay order has been taken away, but that itself is no ground for holding that there is no alternative remedy. The question is of remedy against the impugned order, which means the final remedy and not any interim remedy that may be given for the time being. In our opinion, the lack of power of giving a stay order during the pendency of a claim before the Tribunal does not affect the question whether the remedy of applying or preferring a claim is adequate or not (See Gyan Chand Bhatia v. Rent Control and Eviction Officer . A.I.R 1969 Alld. 57 at 61 F.B.. For this view that although a Tribunal has no power of granting stay, but the alternative forum can be still considered to be adequate, we find support from a decision of a Division Bench in Writ Petition No. 5364 of 1981, Jagdish Chandra Sharma v. State, decided on 10-7-1981.

16. When the Court considered as to whether a particular remedy is adequate or not it is done with reference, to the power of the Court or Tribunal to grant the final relief and not the interim. An interim relief is meant only for the period during which the matter is pending before the Court or the Tribunal, whereas the final relief decides the rights of the parties once for all. It would be erroneous to think that the power to grant stay order is determinative of the controversy as to whether the remedy provided for is adequate or not. In the instant case, we have seen that the Tribunal has been created with the specific object of getting the matters of public employment decided at an early date. To hold that since there is no power to grant stay, therefore, it is not an adequate remedy, appears to us to be a wholly irrelevant consideration, not required by law to be taken into account for the said purpose.

17. The second argument was that as the services of the petitioner had been unjustifiably and illegally terminated, there was breach of Articles 14 and 16 of the Constitution. This argument of the petitioner's learned counsel assumes that the petitioner was permanent. This assumption is not justified. The case of the other side is that the petitioner was temporary. Without deciding this controversy, the question of applying Articles 14 or 16 of the Constitution does not arise.

18. The last submission in that regard was that there was breach of the principles of natural justice, hence the order was illegal and this Court was not entitled to reject the writ petition on the ground of alternative remedy. Whether there was a breach of natural justice or whether the order was against the provisions of any Statute or Government Order, can be decided only when parties lead evidence and full facts are investigated in favour of the party or the other. Nothing could be shown to us on the basis of which we could say that the impugned order terminating the services of the petitioner suffered from any one of the defects, mentioned above. For this purpose, more enquiries, more evidence, more facts have to be found.

19. Counsel for the petitioner relied upon a decision of the Supreme Court reported in I. Hirday Narain v. Income Tax Officer, Bareilly† , Bareilly . 1970 2 SCC 355, where the Supreme Court ruled that once a petition under Article 226 has been entertained and hearing on merits has been given, the petition could not thereafter be rejected on the ground that statutory remedy was not availed of. The decision of that case turned on its own facts. The observations relied upon came in the wake of the admission of the writ petition and its hearing on merits on the ground that if the High Court had not entertained this petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved, the period prescribed by Section 33-A of the Income Tax Act had not expired. This case does not help the petitioner because the petitioner can file the claim petition under the Tribunal Act even today. The limitation has not expired and, as already held above, the Supreme Court itself had observed in the case of A.B Venkateswaran (supra) that the question as to whether there is an adequate alternative remedy available is dependant on a variety of individual facts which must govern the proper exercise of the discretion of the Court. It is pre-eminently a matter of discretion. For this proposition, the Supreme Court had referred to two of its earlier decisions reported in State of Uttar Pradesh v. Mohammad Nooh (supra) and Union of India v. T.R Verma . A.I.R 1957 S.C 832..

20. Counsel next challenged the validity of the Tribunal Act on the basis of Article 323-A inserted by Constitution (Forty Second Amendment) Act, 1976. Article 323-A reads as under:—

“323. Administrative Tribunals (1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or for any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government.

(2) A law made under clause (1) may—

(a) provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States.

(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals.

(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals:

(d) exclude the jurisdiction of all Courts, except the Jurisdiction of the Supreme Court under Article 136 with respect to the disputes or complaints referred to in clause (1);

(e) provide for the transfer to each such administrative tribunal of any cases pending before any Court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;

(f) repeal or amend any order made by the president under clause (3) of Article 371-D;

(g) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as Parliament may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.

(3) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or any other law for the time being in force.”

21. It is to be noted that Article 323-A is not a self executing provision. It merely authorises the specified legislature to make laws to set up such tribunals and to include therein ancillary provisions. It is clear from Article 323-A(2)(d) that existing jurisdiction neither of the Civil Courts nor of the Tribunals created by any Act would be ousted simply because, according to Constitution (Forty Second Amendment) Act, 1976 these matters are triable by tribunals to the Exclusion of the Courts and the tribunals created under an Act. The Tribunals Act had been enacted by the State Legislature in exercise of the power conferred by Entry 41 of List II of the Seventh Schedule of the Constitution. So long as a tribunal has not been constituted under and in accordance with Article 323-A by the Parliament, Article 254 cannot come into play. Article 254 of the Constitution deals with the question of inconsistency between a law made by a State Legislature and a law made by the Parliament. The result of repugnancy may be to invalidate the State law. But, there should first be two laws, one made by the State Legislature and the other by the Parliament before the question of applying Article 254 of the Constitution can arise. There is no law enacted by the Parliament in exercise of the power conferred by Article 323-A, and, as such, the question of repugnancy between the two laws does not arise.

22. The submission that with the enactment of Article 323-A the whole field stood covered and all previous laws made by the State Legislature stood repealed, being inconsistent with the former, does not appeal, to us. Article 323-A would be attracted only when a legislation has been enacted by the Parliament in the manner provided by it. So long as no such legislations have been enacted, the existing jurisdiction would be continuing. In fact, upon the enactment of the law in the manner provided for by Article 323-A, the High Court would not even be entitled to entertain a petition under Article 226 of the Constitution regarding service matters.

23. In Bharat Ram Gupta v. State of U.P . 1979 5 A.L.R 162., a Division Bench of this Court repelled the argument of invalidity of the Tribunal Act. The Division Bench held.

“There is nothing in Article 323-A including its Clause (3) referred to above, which may have the effect of repealing the present Act enacted by the State Legislature. So it continues to be in force. As already seen, Parliament is not bound to pass an Act on the subject………This does not seem to be the intention of the Parliament in inserting Article 323-A in the Constitution and interpretation which is likely to create such an anomalous situation and unworkable, cannot be accepted. Only reasonable interpretation of Art. 323-A including its clause (3), in our opinion, seems to be that if Parliament chooses to enact a law on the subject, provisions of Article 254 of the Constitution as already pointed out above, will be attracted.”

24. Not only that we are bound by the aforesaid decision of the Division Bench, we are in complete agreement with the view taken therein.

25. Sri S.P Singh counsel for the petitioner had given a long list of the rulings on Articles 246 and 254 of the Constitution. We need not refer to them as they are not relevant on the controversy before us.

26. Sri S.P Singh had appeared as a counsel in Writ Petition No. 6969 of 1981, filed by Krishna Nand Singh, in which case also the facts more or less are the same. His submission is rejected on the grounds on which we have rejected Writ Petion No. 10090 of 1981. In some other cases the controversy was that the petitioners of those cases having put in three years of service, were entitled to the benefit of the Government Order making their services permanent. There was a lot of factual controversy. Apart from legal, with respect to that Government Order. We are of opinion that in those cases also the proper remedy for the petitioners would be to file claim petitions. Simply because a case involves interpretation of a Government Order or even a provision of law, the alternative remedy would not cease to be so and a person would become entitled to get the relief as of right on satisfying that a question of law arises for decision. No question of law can be decided in a case without reference to the facts of that case. In these cases we found considerable difficulty in deciding the question of applicability of this G.O without first sorting out the correct facts. This could not be done as the decision on the same would require more evidence.

27. For these reasons both the writ petitions fail and are dismissed. In the circumstances, we make no order as to costs. The interim orders shall stand vacated.